Court backs holding citizens as enemies
January 9, 2003 7:47 AM   Subscribe

Federal appeals court rules that the US can hold citizens as enemies, without the protection of constitutional rights, 'at need' in time of war.
So much for the "home of the free and the brave".
posted by SpecialK (35 comments total)
While this is in reference to the young gentleman who was captured in Afghanistan fighting alongside Taliban forces, it's still a weakening of our constitutional protections. Discuss.
posted by SpecialK at 7:48 AM on January 9, 2003

Clarify "war", please. Is that war like, "Congressionally passed formal declaration of war", or is it more, "war on drugs", "war on homelessness", "war on terror" kind of war? The kind of war that never really ends?
posted by Civil_Disobedient at 7:51 AM on January 9, 2003

Perhaps this is a more complete version of the same article.
posted by revbrian at 7:56 AM on January 9, 2003

So much for the "home of the free and the brave".

See, there's your mistake--it's the land of the free, and the home of the brave.
posted by goethean at 7:59 AM on January 9, 2003

america's tendency to declare war on nouns is either terrifically stupid or frighteningly clever.
posted by mcsweetie at 8:00 AM on January 9, 2003

Where the fuck is the war on the economy?
posted by four panels at 8:02 AM on January 9, 2003

Eugene Volokh's analysis of the Hamdi decision in regard to constitutional and international law.

CivilD: constitutional scholars pretty much universally agree that a congressional authorization of use of force under the War Powers Act is sufficient, and constitutionally equivalent to a declaration of war. For example, Democratic Senator Joe Biden has stated so as Chairman of the Judiciary Committee of the US Senate. This is certainly the interpretation that was used by the Appeals Court in their determination. Whether they would rule similarly if a functional declaration of war had not been passed is unknown, because such a declaration was indeed passed. By any legal standard, the sense of the highest body constitutionally tasked with declaring war, one elected by the American people, is that we are at war.

On preview, I should have had no illusions about the likelihood of serious discussion on this topic.
posted by dhartung at 8:05 AM on January 9, 2003

Oh, and reading the actual decision is always a good idea before going off half-cocked.

If you do, in fact, read the decision, you will soon realize that this is a very limited decision -- it applies only to individuals captured on a battlefield during combat on foreign soil:

As the foregoing discussion reveals, the tensions within this case are significant. Such circumstances should counsel caution on the part of any court. Given the concerns discussed in the preceding sections, any broad or categorical holdings on enemy combatant designations would be especially inappropriate. We have no occasion, for example, to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. See, e.g., Padilla v. Bush, No. 02 Civ. 445 (MBM), 2002 WL 31718308 (S.D.N.Y. Dec. 4, 2002). We shall, in fact, go no further in this case than the specific context before us -- that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces.

Just as the constitution guarantees individual rights, it requires the government to ensure the safety of its citizens and armed forces. In this limited scenario, those rights/obligations are at odds, and a choice has to be made. Where the American citizen* is trying to kill American troops on foreign soil, it's not that hard of a choice to make.

*and by "American citizen" we're talking about a person who was born to Saudi parents in Louisiana, and who was subsequently raised in Saudi Arabia.

posted by pardonyou? at 8:06 AM on January 9, 2003

Lest we forget, President Lincoln suspended habeas corpus in 1861, and threw a Massachusetts secessionist in jail. He ignored an order by federal judge to let the guy go on the grounds that during wartime, his authority as commander in chief trumped that of the courts. The courts begged to differ, and eventually (after the war) reinstated habeas corpus.

Legal scholars have never, to my knowledge, clearly lined out who has the whip hand during wartime -- the legislative or judiciary branches. But there is clear precedent for this action, and despite all the hand-waving, the Constitution is not abrogated.

I will add here that George W. Bush has more support from the Judicial branch than Abraham Lincoln did.
posted by mrmanley at 8:07 AM on January 9, 2003

Four - We've been at war with the economy, and we've won -- it's dead!

revbrian - Thanks, that's a much more complete version than I could find. (The one on my local news site was even shorter than the Chicago paper's story.) It changes the way I feel a little bit -- my knee-jerk reaction from the headline and primary content of the story was that it applied to citizens in our country as well.

According to the article in the Post, "The court did not address questions about U.S. citizens arrested as enemy combatants in this country. The government has classified as a combatant Jose Padilla of Chicago, who was arrested at O'Hare Airport after returning from Pakistan."

Passeges like this still concern me, though: "The appeals court in Richmond, Va., agreed that the case raises serious questions about the rights of citizens but concluded that, in wartime, the government's authority is supreme in deciding who may be held indefinitely." Aren't the courts supposed to watch over the government so that it deals fairly with citizens? The article also states that "courts have only limited authority to intervene in such national security matters."
posted by SpecialK at 8:08 AM on January 9, 2003

This is absurd. The guy this pertains to is a POW, captured with other enemy soldiers, on foreign soil, fighting for the enemy against US troops in wartime.

What does it matter where he was born?
posted by Slithy_Tove at 8:09 AM on January 9, 2003

Because in principle, he is a US citizen. He is afforded the same rights as any other US citizen.

If you want to charge him for treason, do it. Otherwise, don't hold a US Citizen and suspend his constitutionally protected rights.
posted by benjh at 8:28 AM on January 9, 2003

"war on drugs", "war on homelessness", "war on terror"

And the "war on cancer," still going strong after 31 years of losing.
posted by Tholian at 8:41 AM on January 9, 2003

Aren't the courts supposed to watch over the government so that it deals fairly with citizens?

Yes, they are. And in this case they decided that the fact that Hamdi was captured while fighting with an enemy army outweighed the fact of his U.S. citizenship. If the executive branch had been able to deny judicial oversight, then that would be cause for alarm. As it is, I think the system worked fine.

In other news, John Ashcroft is still a bizarre creep.
posted by Ty Webb at 8:41 AM on January 9, 2003

We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

I don't see anything in there about "all AMERICAN men", it's all men. No one should be held for any extended period of time without being charged or given a lawyer. It's not alright to persecute someone because they're a "dirty foriegner" or even if they're a "dirty american".
posted by blue_beetle at 8:48 AM on January 9, 2003

The problem, blue_beetle, is that we need to work that into the Constitution somehow. Left solely in the Declaration of Independence, it's just a nice sentiment.
posted by tolkhan at 9:07 AM on January 9, 2003

Yes, they are. And in this case they decided that the fact that Hamdi was captured while fighting with an enemy army outweighed the fact of his U.S. citizenship.

2002: Ah, he's fighting against American soldiers after we invaded where he was living. That overrides his rights as an American citizen.

2010: He killed ten people. That's severe enough to override his rights as an American citizen.

2034: Shoplifting is far too horrendous an action to allow one to maintain their rights as an American citizen.

2057: You're wearing white? At this time of year?

Mmmmm. Slopes.
posted by XQUZYPHYR at 9:07 AM on January 9, 2003

Isn't the real problem that, as a citizen, Hamdi has been "claimed" by the United States' legal system? If his citizenship means nothing, his fate should be decided by "international law."

Right now he has the worst of both worlds: Ashcroft gets to "prosecute" him, but he has lost the rights granted to US citizens. Am I naive to think that he'd be better off in the hands of an international war tribunal or something?
posted by zekinskia at 9:12 AM on January 9, 2003

General question: Why has no one been charged with treason and/or sedition? These laws are still on the books.

(Is sedition tainted because it has only been used, recently, for racial crimes? Er, that is, anti-racist or racist crimes?)
posted by kablam at 9:17 AM on January 9, 2003

Recommended Reading: The ACLU has a book of essays re: civil liberties post-9/11 and there's an entire section on detainees, combatants and the historical precedents that define who is a citizen, who is a soldier and how they are treated - it is fascinating the ins and outs and details that define the designations between enemy combatants and POWs and detainees - and terrifying as well. Good stuff!
posted by ao4047 at 9:22 AM on January 9, 2003

He is an American, fighting invading American troops in foreign soil. I'm going to go with freedom of speech here. He has the same right to violently oppose the American invasion of Afghanistan as the U.S. has the right to violently invade Afghanistan in the first place.

Or putting it another way, he has the same right to fight the Americans off the territories needed for the Caspian Sea pipeline as the the Americans have to forcibly grab them.

And the rest, boy and girls, is pure bullshit. Because when mr. Bush had the chance knock out or seriously hurt the Al-Quaeda brass in Tora Bora and elsewhere, instead of using the mightiest war machine ever put together (U.S. Armed Forces), he turned to the protomedieval local warlords who had been on the other side just weeks ago. With the results that we all know: the menace has not gone, but grown as it disperses. Which benefits no one but the "folks" already bent on telling you when, with who and how to fuck (and what is that you are smoking?); and who would love to tell you what to think. What a coincidence!

You want a traitors, look no further than the current occupants of the White House. Yes the ones that were NOT voted to occupy it and the buddies they brought along.
posted by magullo at 9:25 AM on January 9, 2003

Magullo - While we are on the subject, Seymour Hersch did a nice piece (In the New Yorker Magazine, I think) on the US admission that, during a siege of one surrounded town in Afghanistan, it allowed thousands of Pakistani ISI - along with a large but undetermined number of Al Qaeda - to be AIRLIFTED TO SAFETY IN PAKISTAN....

Anyway, given the way actually practices tend to run a bit ahead of legal precedent, I imagine that (sometimes) the new "Special Ops." groups empowered to assasinate will also snatch foreign citizens (secretly, of course) and smuggle them to US controlled territories and then, conveniently "finding" them there, hold them in prison as "enemies".

"At need" is a very flexible conditional, and "In time of War" is unecessary given that we are now, like one of Orwells' supra-nations from "1984", perpetually at war - the "War on Terrorism" (which will never end).

So all that remains is the declaration that the US can openly seize foreign citizens labelled (by the US, of course) as "terrorists" or "enemy combatants" and bring them to US territories to hold indefinitely as "enemies" just TRY and stop us....JUST TRY!

This would make the US fit the classic American Heritage Dictionary definition of "Empire" (of the world, in this case).
posted by troutfishing at 9:35 AM on January 9, 2003

Oops! I got off track there, and misread the post, confusing "US citizen" with "Foreign citizens" (wishfull thinking? I half expect the US to declare that it can just seize foreign citizens and hold them as enemy combatants...hey! maybe it can!...)

What really interests me about this post is: how is 'enemy combatant' defined? - ao4047 answered my question: thanks, ao4047 for the link. I'll read it.

"WASHINGTON-- A federal appeals court ruled Wednesday that the government can hold U.S. citizens as enemy combatants during wartime without the constitutional protections afforded Americans in criminal prosecutions."
posted by troutfishing at 9:43 AM on January 9, 2003

So, let me see...

If I'm holding a gun, fighting US forces in a war zone that's not here in the US and am captured as a P.O.W. I lose my right to a lawyer and due process.

Y'know, that sounds fair. If I have used my free will to get that far away from the US politically and militarily, I AM an enemy combatant.

The key here is that this is not a broad, sweeping swipe at our rights as US citizens. This is sort of along the lines of yelling "FIRE" in a crowded movie theater when there's no fire. You can't do this for good reasons, just as there's good reasons to believe that once a person is outside the US and takes up organized arms against US forces, they've pretty much given up on being a US citizen.

I for one would like to see this guy get his due process, but I'm not going to lose any sleep over it.
posted by tholt at 9:59 AM on January 9, 2003

This ruling claims that an American citizen can be held indefinitely without evidence, without a trial, at the whim of the president. While one could argue that it is impractical to have a trial for captured combatants in middle of a battle zone, this guy is an American citizen sitting in the brig in Norfolk, Va. There is no reason not to have a trial other than that the government would rather not bother. Further, they imply that the "cessation of hostilities" can best be determined by the president. Since Bush has declared perpetual war against terror, Hamdi can be held captive for the rest of his life without trial. It is amazing the amount of power Americans are so willing to cede to executive fiat when frightened.
posted by JackFlash at 10:03 AM on January 9, 2003

One thing that bothers me about the "enemy combatant" declaration is who's getting to make it. One of the emphases of this new decision is that the courts have now said they will defer to DoD's judgment in deciding whether the person is an enemy combatant or not--how could that possibly be due process? The other thing that bothers me is the idea that citizens' rights become different for American citizens when they leave American soil: i.e. Americans who travel abroad had better hope and pray they don't get caught in an ambiguous situation, where they're at the mercy of American soldiers' judgment during the fog of war. Maybe Hamdi's situation wasn't particularly ambiguous--he was carrying a rifle among armed Taliban men, and perhaps he knew he was fighting against the US--but what about future cases?

That said, I think zekinskia's on to something, and I wish the world worked the way blue_beetle says it should.
posted by win_k at 10:05 AM on January 9, 2003

pardonyou? and by "American citizen" we're talking about a person who was born to Saudi parents in Louisiana, and who was subsequently raised in Saudi Arabia.

What does this matter? If you're an American citizen, you're an American citizen. Does this mean that some citizens have some lesser form of citizenship, depending on where they grew up?

I'm with win_k in going for zekinskia's viewpoint. Either he's a POW, (in which case there are clearly defined international agreements on treatment, communications with the outside, etc.) or he's an American citizen that should be afforded due process (and possibly tried for treason.)
posted by Vidiot at 10:23 AM on January 9, 2003

I also find interesting is as we define and re-define POWs and detainees and combatants and essentially wipe our asses with the Geneva Convention - what happens when American soldiers are captured/detained under similar precedents by other countries?
posted by ao4047 at 10:25 AM on January 9, 2003


He ought to be grateful that he's not being tried for treason, because the penalty for treason during wartime is death. Further: you cannot be a POW, AFAIK, unless you are fighting on behalf of a governmental entity and signatory to the Geneva Accords. They call them "enemy combatants" for a reason -- they are not acting on behalf of a foreign government.

The same situation held during the Spanish Civil War, when some Americans fought in the Abraham Lincoln Brigade. Had any of them been captured, they would not have been under the protection of the US government because they were not acting under US aegis.
posted by mrmanley at 10:33 AM on January 9, 2003


Last time I checked, Al Qaida was not a signatory of the Geneva Accords.
posted by mrmanley at 10:34 AM on January 9, 2003

JackFlash - reminds me of a famous Henry Kissinger quote:

' "Today Americans would be outraged if U.N. troops entered Los Angeles to restore order; tomorrow they will be grateful. This is especially true if they were told there was an outside threat from beyond, whether real or promulgated, that threatened our very existence. It is then that all peoples of the world will plead with world leaders to deliver them from this evil. The one thing every man fears is the unknown. When presented with this scenario, individual rights will be willingly relinquished for the guarantee of their well being granted to them by their world government."
-- Henry Kissinger speaking at Evian, France, May 21, 1992 Bilderburgers meeting. Unbeknownst to Kissinger, his speech was taped by a Swiss delegate to the meeting.' "

posted by troutfishing at 10:36 AM on January 9, 2003

what happens when American soldiers are captured/detained under similar precedents by other countries

They'll be beaten, tortured, starved, and killed, as they routinely were anyway before this current war. If anything, I think you have the causality wrong -- it seems likely to me that the US is paying somewhat less attention to GC niceties because it knows full well that its soldiers and airmen are already screwed if captured (unless we somehow find ourselves in a war with Spain or the UK).

There are lots of good reasons to dislike the way the US is acting WRT its prisoners, but fear of future consequences isn't in the list.
posted by ROU_Xenophobe at 10:46 AM on January 9, 2003

Everyone, without regard to citizenship, should be given due process. I'd prefer that my unalienable rights, the ones "endowed by [my] Creator," remain unalienable. In order to maintain that my rights are unalienable, I must accept that everyone has those same rights. These rights are not derived from the government, and therefore are not a privilege of citizenship. Allowing our government to deny these rights to anyone, citizen or not, is a de facto acceptance of the proposition that our rights flow from the government and that the government has the prerogative to expand, contract or dismiss our rights at its will.

What's the harm in allowing these enemy combatants to be tried in open court? Is there a fear that accused may be acquitted? Isn't that the way the system is supposed to work?
posted by tolkhan at 1:42 PM on January 9, 2003

they went after arab terrorists, this is ok because i'm no arab terrorist. they are going after arab immigrants in the u.s. that might be terrorists, and this is fine because i was born here and i'm white. they are going after u.s. citizens who have taken up arms against the nation, this is ok because i don't own a gun.

who are they going to go after next?
posted by fuq at 1:43 PM on January 9, 2003

who are they going to go after next?

Creed, hopefully. Those guys suck.
posted by Ty Webb at 2:18 PM on January 9, 2003

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